Exhibit 10.4.5
EMPLOYMENT AGREEMENT WITH
Xxxxxx Xxxxxx Ph.D.
This Employment Agreement ("Agreement") is entered into as of this 1st
day of June, 2004 (the "Effective Date"), by and between Xxxxxx Xxxxxx Ph.D.
(the "Executive") and Inyx, Inc. (the "Company" or the "Employer"), or together
the Parties.
RECITALS:
Whereas, the Company desires to employ the Executive to provide personal
services to the Company, and also wishes to provide the Executive with certain
compensation and benefits in return for such services; and
Whereas, the Executive wishes to be employed by the Company and provide personal
services to the Company in return for certain compensation and benefits.
Now, therefore, in consideration of the mutual promises and covenants contained
herein, it is hereby agreed by and between the Parties hereto as follows:
1. EMPLOYMENT
1.1. GENERAL. The Company hereby employs the Executive in the senior
management position of Vice President Global Sales & Marketing, whose
responsibilities includes supervising the sales and marketing activities for the
Company and its affiliated operations, and may assign other reasonable duties to
the Executive from time to time. The Executive agrees to perform and discharge
such duties well and faithfully, and to be subject to the supervision and
direction of the Chairman of the Board and Chief Executive Officer of Inyx,
Inc., the parent Company. The Executive acknowledges that this appointment
involves responsibility for the affairs of the Company and its affiliates
worldwide. Accordingly, the duties of the employment will need to be exercised
in a number of countries and not just in the United Kingdom. The Executive will
be initially based at the Company's operations in Runcorn, England, for at least
the first six months of the Employment Term. For purposes of English Law, the
Executive shall be seconded to Inyx Pharma Limited, the Company's wholly owned
United Kingdom subsidiary, during this period of assignment. Additionally,
during the Employment Term, the Executive will be required to travel to and
conduct duties in other countries on behalf of the Company and its affiliates.
It is intended that the Executive will be based at the Company's corporate
offices in New York City, USA, sometime after the first six months of the
Employment Term, the latest by the December 2005, if U.S. business opportunities
for the Company in 2005 support basing the Executive in New York. When the
Company and Executive agree for Executive to relocate, Company will reimburse
reasonable cost of U.S. relocation and return to Europe following termination of
this Employment Agreement for any reason; EXCEPT if Executive is terminated for
Cause (as defined in Sections 3.2.4 and 3.3.1 hereof).
1.2. TIME DEVOTED TO POSITION. The Executive, during the Employment
Term, shall devote his full business time, attention and skills to the business
and affairs of the Employer.
1.3. CERTIFICATIONS. Whenever the Executive is required by law, rule or
regulation or requested by any governmental authority or by the Company or the
Company's auditors to provide certifications with respect to financial
statements or filings with the Securities and Exchange Commission or any other
governmental authority, the Executive shall sign such certifications as may be
reasonably requested by such officers, with such exceptions as the Executive
deems necessary to make such certifications accurate and not misleading.
2. COMPENSATION AND BENEFITS
2.1. SALARY. At all times the Executive is employed hereunder, Employer
shall pay to Executive, and Executive shall accept, as full compensation for any
and all services rendered and to be rendered by him during such period to
Employer in all capacities, including, but not limited to, all services that may
be rendered by him to any of Employer's existing subsidiaries, entities and
organizations hereafter formed, organized or acquired by Employer, directly or
indirectly (each, a "Subsidiary" and collectively, the "Subsidiaries"), the
following: (i) a base salary at the annual rate of 90,000 Great Britain Pounds
((pound)) or at such increased rate as the Board (through its Compensation
Committee), in its sole discretion, may hereafter from time to time grant to
Executive, subject to adjustments in accordance with Section 2.2 hereof (as so
adjusted, the "Base Salary"); and (ii) any additional bonus and the benefits set
forth in Sections 2.3, 2.4 and 2.5 hereof. The Base Salary shall be payable in
accordance with the regular payroll practices of Employer applicable to senior
executives, less such deductions as shall be required to be withheld by
applicable law and regulations or otherwise.
2.2. COMMISSION BONUS. Subject to Section 3.3 hereof, the Executive
shall be entitled to a cash bonus of five percent (5%) on new sales generated
directly by the Executive for the Company, based on a minimum twenty five
percent (25%) gross margin to the Company from such sales generated. If there is
a sale that generates less gross margin, then commission shall be adjusted
accordingly; e.g. if 23% gross margin on (pound)1 million sale, then the 5%
commission would be paid on (pound)920,000 (23% gross margin equals 92% of 25%
gross margin threshold). The 5% commission rate is on applicable sales payments
received by the Company through December 31, 2005.
2.3. STOCK OPTIONS. The Executive shall be entitled to participate in
stock option and similar equity plans of Employer. In connection herewith, the
Executive will be granted options to purchase shares of common stock of the
Company on the following basis: 60,000 options to be granted on June 1, 2004,
with an exercise price equal to the closing market price of the Company's common
stock on June 1, 2004; 50,000 options to be granted on January 1, 2005, with an
exercise price equal to the closing market price of the Company's common stock
on January 1, 2005; 50,000 options to be granted on June 1, 2005, with an
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exercise price equal to the closing market price of the Company's common stock
on June 1, 2005; and 50,000 options to be granted on December 31, 2005, with an
exercise price equal to the closing market price of the Company's common stock
on December 31, 2005; with all options issued on terms and conditions set forth
in the Stock Option Plan of the Company and a Stock Option Agreement with the
Executive containing these terms. The Executive shall be entitled to any
additional annual stock option grants provided at the discretion of the Board.
2.4. EXECUTIVE BENEFITS
2.4.1. EXPENSES. Employer shall promptly reimburse the
Executive for properly documented expenses that he may reasonably incur
in connection with the performance of his duties including but not
limited to, expenses for such items as business entertainment, business
travel, hotel and meals that are in accordance with Company policy and
approved by the Chairman of the Board and Chief Executive Officer of
the Company. In addition, Employer shall pay Executive a monthly car
allowance of (pound)750 and furnish the Executive with a paid-for
mobile phone for Executive's business use and lap-top computer for use
when traveling on business.
2.4.2. EMPLOYER PLANS. Executive shall be entitled to
participate in such employee benefit plans and programs as Employer may
from time to time generally offer or provide to executive officers of
Employer or its Subsidiaries, including, but not limited to,
participation in health and accident, medical and dental plans
including any such benefit plans offered by the Subsidiaries where
applicable, and profit sharing and retirement plans.
2.4.3. VACATION. The Executive shall be entitled to twenty
five business days of paid vacation per calendar year, prorated for any
partial year. Unused vacation days in any year will have to be taken by
March 31st of the following year or will continue to accrue for the
benefit of the Executive and payable on termination of employment.
2.4.4. LIFE INSURANCE. Executive shall be entitled to
(PROVIDED, that Executive qualifies on a non-rated basis) a term life
insurance policy, the premiums of which shall be borne by Employer and
the death benefits of which shall be payable to Executive's estate, or
as otherwise directed by the Executive, in the amount equal to
$1,000,000 (U.S. Dollars).
3. EMPLOYMENT TERM; TERMINATION
3.1. EMPLOYMENT TERM. The Executive's employment hereunder shall
commence on June 1, 2004 and, except as otherwise provided in Section 3.2
hereof, shall continue until December 31, 2005 (the "Initial Term"). Thereafter,
this Agreement shall automatically be renewed for successive one-year periods
commencing on the 1st day of January of 2006 and of each subsequent year, unless
either (i) Employer and Executive agree to a new Employment Agreement, or (ii)
Executive or Employer shall have provided a Notice of Termination (as defined in
Section 3.4.2 hereof) in respect of its or his election not to renew the
Employment Term (in accordance with Sections 3.3.2 and 3.3.3 hereof). Upon
non-renewal of the Employment Term pursuant to this Section 3.1 or termination
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pursuant to Sections 3.2.1 through 3.2.5 hereof, inclusive, Executive shall be
released from any duties hereunder (except as set forth in Section 4 hereof) and
the obligations of Employer to Executive shall be as set forth in Section 3.3
hereof only.
3.2. EVENTS OF TERMINATION. The Employment Term shall terminate upon
the occurrence of any one or more of the following events:
3.2.1. DEATH. In the event of Executive's death, the
Employment Term shall terminate on the date of his death.
3.2.2. WITHOUT CAUSE BY EXECUTIVE. Executive may terminate the
Employment Term at any time during such Term for any reason whatsoever
by giving a Notice of Termination to Employer. The Date of Termination
pursuant to this Section 3.2.2 shall be effective the Notice of
Termination is given, unless an extended period is agreed to by the
parties.
3.2.3. DISABILITY. In the event of Executive's Disability (as
hereinafter defined), Employer may, at its option, terminate the
Employment Term by giving a Notice of Termination to Executive. The
Notice of Termination shall specify the Date of Termination, which date
shall not be earlier than thirty (30) days after the Notice of
Termination is given. For purposes of this Agreement, "Disability"
means the inability of Executive for ninety (90) days in any twelve
(12) month period to substantially perform his duties hereunder as a
result of a physical or mental illness, all as determined in good faith
by the Board.
3.2.4. CAUSE. Employer may, at its option, terminate the
Employment Term for "Cause" based on objective factors determined in
good faith by a the Board of Directors as set forth in a Notice of
Termination to Executive specifying the reasons for termination and the
failure of the Executive to cure the same within thirty (30) days after
Employer shall have given the Notice of Termination; PROVIDED, HOWEVER,
that in the event the Board in good faith determines that the
underlying reasons giving rise to such determination cannot be cured,
then the thirty (30) day period shall not apply and the Employment Term
shall terminate on the date the Notice of Termination is given. For
purposes of this Agreement, "Cause" shall mean (i) Executive's
conviction of, guilty or no contest plea to a felony (ii) an act or
omission by Executive in connection with his employment that
constitutes fraud, criminal misconduct, breach of fiduciary duty,
dishonesty, gross negligence, malfeasance, willful misconduct or other
conduct that is materially harmful or detrimental to Employer; (iii) a
material breach by Executive of this Agreement and the failure of the
Executive to cure the same within thirty (30) days; (iv) continuing
failure to perform such proper duties as are assigned to Executive by
in accordance with this Agreement and with law and good business
practice, other than a failure resulting from a Disability; or (v)
Executive is found to have been involved in regulatory violations,
criminal misconduct, dishonesty or other willful misconduct while
previously employed by other employers.
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3.2.5. EMPLOYER RIGHT TO TERMINATE. Employer may terminate
this agreement at the end of its Initial Term, provided that Employer
shall pay Executive in accordance with payment described in Section
3.3.2 hereof. In addition, Employer may terminate Executive for any
reason, with or without cause, prior to end of the Initial Term, by
paying Executive the payment described in Section 3.3.2 hereof. In
consideration of such payment, and assuming all other payments required
hereby have been paid, Executive agrees to provide Employer a general
release of any claims relating to such termination or otherwise.
3.3. CERTAIN OBLIGATIONS OF EMPLOYER FOLLOWING TERMINATION OF THE
EMPLOYMENT TERM. Following termination of the Employment Term under the
circumstances described below, Employer shall pay to Executive or his estate, as
the case may be, the following compensation and provide the following benefits
in full satisfaction and final settlement of any and all claims and demands that
Executive now has or hereafter may have hereunder against Employer. In
connection with Executive's receipt of any or all monies and benefits to be
received pursuant to this Section 3.3, Executive shall not have a duty to seek
subsequent employment during the period in which he is receiving severance
payments and the Severance Amount (as defined in Section 3.3.2 hereof) shall not
be reduced solely as a result of Executive's subsequent employment by an entity
other than Employer.
3.3.1. FOR CAUSE. In the event that the Employment Term is
terminated by Employer for Cause, Employer shall pay to Executive, in a
single lump-sum, an amount equal to any unpaid but earned Base Salary
through the Date of Termination. Any payment made in accordance with
this Section 3.3.1 shall be made at a convenient date no later than
fourteen (14) days after the termination date.
3.3.2. WITHOUT CAUSE BY EMPLOYER; ELECTION NOT TO RENEW BY
EXECUTIVE. In the event that the Employment Term is terminated by
Employer or Employer elects not to renew this Agreement pursuant to
Section 3.2.5 hereof, it shall pay to Executive, subject to Executive's
continued compliance with the terms of Section 4 hereof, any unpaid but
earned Base Salary through the effective Date of Termination PLUS an
amount equal to nine (9) months Base Salary in effect at such
applicable time (the "Severance Amount"). Additionally, any Bonuses
that are due to the Executive shall be paid by Employer to Executive.
HOWEVER, if termination of Executive is due to or after a Change of
Control (as defined in Section 3.4.3 hereof) of the Employer, the
Severance Amount is increased to eighteen (18) months Base Salary in
effect at such applicable time, and any non-vested stock options
granted to Executive shall become fully vested at time of such
termination date. Any payments made in accordance with this Section
3.3.2 shall be made in a lump-sum payment at a convenient date no later
than fourteen (14) days after the effective termination date. In
consideration of such payment, and assuming all other payments required
hereby have been paid, Executive agrees to provide Employer a general
release of any claims relating to such termination or otherwise.
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3.3.3. WITHOUT CAUSE BY EXECUTIVE; ELECTION NOT TO RENEW BY
EXECUTIVE. In the event that the Employment Term is terminated by
Executive pursuant to Section 3.2.2 hereof or Executive elects not to
renew this Agreement at any time pursuant to Section 3.1 hereof,
Employer shall pay to Executive Base Salary through the effective Date
of Termination. In addition, Employer shall pay Executive, in a single
lump-sum, an amount equal to any unpaid but earned Bonuses through the
effective Date of Termination, PROVIDED that the Executive provides
Employer with ninety (90) days advance notification in writing of the
intent to terminate or not to renew this Agreement.
3.3.4. DEATH OR DISABILITY. In the event that the Employment
Term is terminated by reason of Executive's Disability pursuant to
Section 3.2.3 or death pursuant to Section 3.2.1 hereof, Employer shall
pay to Executive or his estate, in a single lump sum, an amount equal
to any unpaid but earned Bonuses and Base Salary through the effective
Date of Termination.
3.3.5. POST-EMPLOYMENT TERM BENEFITS. In the event of
termination for any reason, Employer shall reimburse Executive for any
unpaid expenses pursuant to Section 2.5.1 hereof. If Executive is
terminated pursuant to Sections 3.2.3 or 3.2.5 hereof or Employer
elects not to renew this Agreement pursuant to Section 3.1 hereof,
Employer shall pay, on behalf of Executive, for a period equal to six
(6) months from the effective Date of Termination (the "Benefits
Period"), subject to Executive's continued compliance with the terms of
Section 4 hereof, all medical, dental, health and accident, and
disability plans and programs other than stock options in which
Executive was entitled to participate immediately prior to the
effective date of termination, PROVIDED that Executive's continued
participation is legally possible under the general terms and
provisions of such plans and programs. In the event that Executive's
participation in any such plan or program is barred, Employer, at its
sole cost and expense shall use its commercially reasonable efforts to
provide Executive with benefits substantially similar to those that
Executive was entitled to receive under such plans and programs for the
remainder of the Benefits Period. If Executive is terminated for CAUSE
pursuant to Section 3.2.4 hereof, Employer shall pay for no additional
benefits after effective date of termination.
3.3.6. STOCK OPTIONS. Executive shall be entitled to receive the
Employer stock options set forth in the attached Stock Option Agreement.
3.4. DEFINITIONS.
3.4.1. "NOTICE OF TERMINATION" DEFINED. "Notice of
Termination" means a written notice that indicates the specific
termination provision relied upon by Employer or Executive and, except
in the case of termination pursuant to Sections 3.2.1 or 3.2.2 hereof,
that sets forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of the Employment Term under
the termination provision so indicated.
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3.4.2. "DATE OF TERMINATION" DEFINED. "Date of Termination"
means such date as the Employment Term is expired if not renewed or
terminated in accordance with Sections 3.1 or 3.2 hereof.
3.4.3. "CHANGE OF CONTROL" DEFINED. A "Change of Control" of
Employer means (i) the approval by the stockholders of the Company of
the sale, lease, exchange or other transfer (other than pursuant to
internal reorganization) by the Company of all or substantially all of
its respective assets to a single purchaser or to a group of associated
purchasers; (ii) the first purchase of shares of equity securities of
the Company pursuant to a tender offer or exchange offer (other than an
offer by the Company) for at least fifty (50%) percent of the equity
securities of the Company; (iii) the approval by the stockholders of
the Company of an agreement for a merger or consolidation in which the
Company shall not survive as an independent, publicly-owned
corporation; (iv) the acquisition (including by means of a merger) by a
single purchaser or a group of associated purchasers of securities of
the Company from the Company or any third party representing fifty
(50%) percent or more of the combined voting power of the Company's
then outstanding equity securities in one or a related series of
transactions (other than pursuant to an internal reorganization or
transfers of the Executive's interests).
4. CONFIDENTIALITY AND NONSOLICITATION; PROPERTY RIGHTS
4.1. "CONFIDENTIAL INFORMATION" DEFINED. "Confidential Information"
means any and all information (oral or written) relating to Employer or any
Subsidiary or any entity controlling, controlled by, or under common control
with Employer or any Subsidiary or any of their respective activities,
including, information not previously disclosed to the public or to the trade by
the Company's management, or otherwise in the public domain, with respect to the
Company's products, facilities, applications and methods, trade secrets and
other intellectual property, systems, procedures, manuals, confidential reports,
product price lists, customer lists, technical information, financial
information, business plans, prospects or opportunities, but shall exclude any
information which (i) is or becomes available to the public or is generally
known in the industry or industries in which the Company operates other than as
a result of disclosure by the Executive in violation of his agreements under
this Section or (ii) the Executive is required to disclose under any applicable
laws, regulations or directives of any government agency, tribunal or authority
having jurisdiction in the matter or under subpoena or other process of law. The
Executive confirms that all restrictions in this Section are reasonable and
valid and waives all defenses to the strict enforcement thereof.
4.2. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION. The Executive shall
not at any time (other than as may be required or appropriate in connection with
the performance by him of his duties hereunder), directly or indirectly, use,
communicate, disclose or disseminate any Confidential Information in any manner
whatsoever (except as may be required under legal process by subpoena or other
court order).
4.3. CERTAIN ACTIVITIES. The Executive shall not, while employed by the
Company and for a period of one (1) year following the Date of Termination,
directly or indirectly, hire, offer to hire, entice away or in any other manner
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persuade or attempt to persuade any officer, employee, agent, lessor, lessee,
licensor, licensee or supplier of Employer or any of its Subsidiaries to
discontinue or alter his or its relationship with Employer or any of its
Subsidiaries.
4.4. NON-COMPETITION. The Executive shall not, while employed by the
Company and for a period of one (1) year following the Date of Termination,
engage or participate, directly or indirectly (whether as an officer, director,
employee, partner, consultant, shareholder, lender or otherwise), in any
business that manufactures, markets or sells products that directly competes
with any product of the Employer that is significant to the Employer's business
based on sales and/or profitability of any such product as of the Date of
Termination. Nothing herein shall prohibit Executive from being a passive owner
of less than 1% of any publicly-traded class of capital stock of any entity
directly engaged in a competing business.
4.5. PROPERTY RIGHTS; ASSIGNMENT OF INVENTIONS. With respect to
information, inventions and discoveries or any interest in any copyright and/or
other property right developed, made or conceived of by Executive, either alone
or with others, at any time during his employment by Employer and whether or not
within working hours, arising out of such employment or pertinent to any field
of business or research in which, during such employment, Employer is engaged or
(if such is known to or ascertainable by Executive) is considering engaging,
Executive hereby agrees:
(a) that all such information, inventions and discoveries or
any interest in any copyright and/or other property right, whether or
not patented or patentable, shall be and remain the exclusive property
of the Employer;
(b) to disclose promptly to an authorized representative of
Employer all such information, inventions and discoveries or any
copyright and/or other property right and all information in
Executive's possession as to possible applications and uses thereof;
(c) not to file any patent application relating to any such
invention or discovery except with the prior written consent of an
authorized officer of Employer (other than Executive);
(d) that Executive hereby waives and releases any and all
rights Executive may have in and to such information, inventions and
discoveries, and hereby assigns to Executive and/or its nominees all of
Executive's right, title and interest in them, and all Executive's
right, title and interest in any patent, patent application, copyright
or other property right based thereon. Executive hereby irrevocably
designates and appoints Employer and each of its duly authorized
officers and agents as his agent and attorney-in-fact to act for him
and on his behalf and in his stead to execute and file any document and
to do all other lawfully permitted acts to further the prosecution,
issuance and enforcement of any such patent, patent application,
copyright or other property right with the same force and effect as if
executed and delivered by Executive; and
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(e) at the request of Employer, and without expense to
Executive, to execute such documents and perform such other acts as
Employer deems necessary or appropriate, for Employer to obtain patents
on such inventions in a jurisdiction or jurisdictions designated by
Employer, and to assign to Employer or its designee such inventions and
any and all patent applications and patents relating thereto.
4.6. INJUNCTIVE RELIEF. The parties hereby acknowledge and agree that
(a) Employer will be irreparably injured in the event of a breach by Executive
of any of his obligations under this Section 4; (b) monetary damages will not be
an adequate remedy for any such breach; (c) Employer will be entitled to
injunctive relief, in addition to any other remedy which it may have, in the
event of any such breach; and (d) the existence of any claims that Executive may
have against Employer, whether under this Agreement or otherwise, will not be a
defense to the enforcement by Employer of any of its rights under this Section
4.
4.7. NON-EXCLUSIVITY AND SURVIVAL. The covenants of the Executive
contained in this Section 4 are in addition to, and not in lieu of, any
obligations that Executive may have with respect to the subject matter hereof,
whether by contract, as a matter of law or otherwise, and such covenants and
their enforceability shall survive any termination of the Employment Term by
either party and any investigation made with respect to the breach thereof by
Employer at any time.
5. MISCELLANEOUS PROVISIONS.
5.1. SEVERABILITY. If, in any jurisdiction, any term or provision
hereof is determined to be invalid or unenforceable, (a) the remaining terms and
provisions hereof shall be unimpaired; (b) any such invalidity or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction; and (c) the invalid or
unenforceable term or provision shall, for purposes of such jurisdiction, be
deemed replaced by a term or provision that is valid and enforceable and that
comes closest to expressing the intention of the invalid or unenforceable term
or provision.
5.2. EXECUTION IN COUNTERPARTS. This Agreement may be executed in one
or more counterparts, and by the different parties hereto in separate
counterparts, each of which shall be deemed to be an original but all of which
taken together shall constitute one and the same agreement (and all signatures
need not appear on any one counterpart), and this Agreement shall become
effective when one or more counterparts has been signed by each of the parties
hereto and delivered to each of the other parties hereto.
5.3. NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed duly given upon receipt when
delivered by hand, overnight delivery or telecopy (with confirmed delivery), or
three (3) business days after posting, when delivered by registered or certified
mail or private courier service, postage prepaid, return receipt requested, as
follows:
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If to Employer, to:
Inyx, Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Chairman and Chief Executive Officer
Facsimile No.: 000-000-0000
If to Executive, to:
Xxxxxx Xxxxxx Ph.D.
Doernter Xxx 00
Xxxxxxxxxxx
X-00000
Xxxxxxx
Or to such other address(es) as a party hereto shall have designated by notice
in writing to the other parties hereto.
5.4. AMENDMENT. No provision of this Agreement may be modified,
amended, waived, or discharged in any manner except by a written instrument
executed by both the Employer and the Executive.
5.5. ENTIRE AGREEMENT. This Agreement and, with respect to Section
3.3.6 hereof, Executive's Stock Option Agreements and the governing stock option
plans, constitute the entire agreement of the parties hereto with respect to the
subject matter hereof, and supersede all prior agreements and understandings of
the parties hereto, oral or written.
5.6. APPLICABLE LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be wholly performed therein, without regard to principles of
conflicts of laws.
5.7. HEADINGS. The headings contained herein are for the sole purpose
of convenience of reference, and shall not in any way limit or affect the
meaning or interpretation of any of the terms or provisions of this Agreement.
5.8. BINDING EFFECT; SUCCESSORS AND ASSIGNS. The Executive may not
delegate any of his duties or assign his rights hereunder. This Agreement shall
inure to the benefit of, and be binding upon, the parties hereto and their
respective heirs, legal representatives, successors and permitted assigns.
Employer shall require any successor (whether direct or indirect and whether by
purchase, merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of Employer, by an agreement in form and substance
reasonably satisfactory to Executive, to expressly assume and agree to perform
this Agreement in the same manner and to the same extent that Employer would be
required to perform if no such succession had taken place.
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5.9. WAIVER, ETC. The failure of either of the parties hereto to, at
any time, enforce any of the provisions of this Agreement shall not be deemed or
construed to be a waiver of any such provision, nor to in any way affect the
validity of this Agreement or any provision hereof or the right of either of the
parties hereto thereafter to enforce each and every provision of this Agreement.
No waiver of any breach of any of the provisions of this Agreement shall be
effective unless set forth in a written instrument executed by the party against
whom or which enforcement of such waiver is sought, and no waiver of any such
breach shall be construed or deemed to be a waiver of any other or subsequent
breach.
5.10. CAPACITY, ETC. Executive and Employer hereby represent and
warrant to the other that, as the case may be: (a) he or it has full power,
authority and capacity to execute and deliver this Agreement, and to perform his
or its obligations hereunder; (b) such execution, delivery and performance shall
not (and with the giving of notice or lapse of time or both would not) result in
the breach of any agreements or other obligations to which he or it is a party
or he or it is otherwise bound; and (c) this Agreement is his or its valid and
binding obligation in accordance with its terms.
5.11. ARBITRATION. Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively in arbitration
conducted in New York, New York in accordance with the rules of the American
Arbitration Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction. Punitive damages shall not
be awarded. In any arbitration proceeding, the party determined to be the
prevailing party shall be entitled to receive, in addition to any other award,
its attorneys' fees and expenses of the proceeding.
IN WITNESS WHEREOF, this Agreement has been executed and delivered by
the parties hereto as of the date first above written.
INYX, INC.
By:
/s/ Xxxx Xxxxxxx
---------------------------------------------
Name: Dr. Xxxx Xxxxxxx
Title: Chairman and Chief Executive Officer
XXXXXX XXXXXX Ph.D.
/s/ Xxxxxx Xxxxxx
---------------------------------------------
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